Norfolk Naval Shipyard and Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO 



[ v01 p921 ]
01:0921(105)AR
The decision of the Authority follows:


 1 FLRA No. 105
                                            AUGUST 30, 1979
 
 MR. ARNOLD H. ABRONS
 SACHS AND ABRONS
 SUITE 220
 5 KOGER EXECUTIVE CENTER
 NORFOLK, VIRGINIA 23502
 
                 RE:  NORFOLK NAVAL SHIPYARD AND TIDEWATER VIRGINIA
                      FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO                 
                      (HARKLESS, ARBITRATOR), FLRC No. 78A-166
 
 DEAR MR. ABRONS:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF
 THE ARBITRATOR'S AWARD FILED IN THE ABOVE-ENTITLED CASE.
 
    ACCORDING TO THE ARBITRATOR, THIS GRIEVANCE AROSE WHEN THE GRIEVANTS
 WERE NOT GIVEN ENVIRONMENTAL PAY FOR PERFORMING CERTAIN SPRAY PAINTING.
 THE GRIEVANCES WERE ULTIMATELY SUBMITTED TO ARBITRATION.
 
    THE ARBITRATOR STATED THE ISSUE BEFORE HIM TO BE:
 
    (W)HETHER THE PAINTERS EMPLOYED TO PAINT SHIPS IN DRYDOCK AT THE
 SHIPYARD ARE ENTITLED TO
 
    RECEIVE "ENVIRONMENTAL PAY," MORE COMMONLY CALLED "DIRTY MONEY,"
 BECAUSE OF THE CONDITIONS
 
    UNDER WHICH THEY WORK WHEN SPRAY PAINTING.  /1/
 
    IN THE OPINION ACCOMPANYING HIS AWARD, THE ARBITRATOR STATED THAT THE
 AGREEMENT REQUIRES, AS A PRECONDITION OF RECEIVING THE WAGE
 DIFFERENTIAL, THAT THE EMPLOYEE BE "(P)ERFORMING WORK WHICH SUBJECTS THE
 EMPLOYEE TO SOIL OF BODY OR CLOTHING:  (1) BEYOND THAT NORMALLY TO BE
 EXPECTED IN PERFORMING DUTIES OF THE CLASSIFICATION . . ." HE NOTED THAT
 THE JOB DESCRIPTION FOR THE GRIEVANTS' POSITIONS PROVIDES THAT EIGHTY
 PERCENT OF THE WORK CONSISTS OF SPRAY PAINTING AND REFERS TO THE
 "UNPLEASANT WORKING CONDITIONS," AND THAT THE "JOB GRADING STANDARD"
 ISSUED BY THE CIVIL SERVICE COMMISSION FOR THESE JOBS NOTES THAT "DIRT,
 SPRAY, AND FUMES ARE USUALLY PRESENT." THEREFORE, THE ARBITRATOR
 CONCLUDED, THE GRIEVANTS' WORK (EXCEPT FOR PAINTING IN TANKS OR SIMILAR
 CONFINED AREAS FOR WHICH ENVIRONMENTAL DIFFERENTIAL IS STILL PAID)
 SUBJECTS THEM ONLY TO "SOIL OF BODY OR CLOTHING" WHICH IS "NORMALLY TO
 BE EXPECTED (LINE(S) OF SOURCE CUT OFF BY COPY MACHINE) SIMILAR WORK WAS
 NOT BINDING, SINCE SUCH PRACTICE WAS CONTRARY TO THE FEDERAL PERSONNEL
 MANUAL, THE LANGUAGE OF WHICH WAS INCORPORATED INTO THE PARTIES'
 AGREEMENT BY ARTICLE 13.  THE ARBITRATOR CONCLUDED THAT THERE WAS NO
 BASIS UNDER THE AGREEMENT OR THE FPM FOR THE PAYMENT OF THE
 ENVIRONMENTAL DIFFERENTIAL TO THE GRIEVANTS FOR THEIR USUAL WORK IN
 PAINTING THE EXTERIOR OR INTERIOR OF SHIPS, EXCEPT WHEN THEY ARE ENGAGED
 IN DUTIES WHICH ARE NOT AN INHERENT PART OF THE JOB SUCH AS PAINTING IN
 TANKS, SEA CHESTS OR BILGES.  THE ARBITRATOR, THEREFORE, DENIED THE
 GRIEVANCE.
 
    THE UNION REQUESTS THAT THE AUTHORITY ACCEPT ITS PETITION FOR REVIEW
 OF THE ARBITRATOR'S AWARD ON THE BASIS OF THE FOUR EXCEPTIONS DISCUSSED
 BELOW.  THE AGENCY DID NOT FILE AN OPPOSITION.
 
    IN ACCORDANCE WITH SECTION 2400.5 OF THE TRANSITION RULES AND
 REGULATIONS OF THE AUTHORITY (44 FED. REG. 44741) AND SECTION 7135(B) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215),
 THE RULES OF PROCEDURE OF THE FEDERAL LABOR RELATIONS COUNCIL, 5 C.F.R.
 PART 2411 (1978), REMAIN OPERATIVE WITH RESPECT TO THE PRESENT CASE
 EXCEPT THAT THE WORD "AUTHORITY" IS SUBSTITUTED, AS APPROPRIATE,
 WHEREVER THE WORD "COUNCIL" APPEARS IN SUCH RULES.
 
    UNDER SECTION 2411.32 OF THE RULES AS SO AMENDED, REVIEW OF AN
 ARBITRATION AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON THE
 FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE EXCEPTIONS
 TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES APPLICABLE LAW,
 APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS SIMILAR TO THOSE
 UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE SUSTAINED BY COURTS IN
 PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
 
    IN ITS FIRST EXCEPTION, THE UNION CONTENDS THAT THE ARBITRATOR'S
 REFUSAL TO ACKNOWLEDGE THE LEGAL SIGNIFICANCE OF PAST PRACTICE IN A
 COLLECTIVE BARGAINING AGREEMENT AND AS A MATTER OF LAW IS ERRONEOUS IN
 LIGHT OF THE FPM REGULATIONS THAT ALLOW THE NEGOTIATION OF AUTHORIZED
 WORK SITUATIONS.
 
    THE UNION'S FIRST EXCEPTION DOES NOT STATE A GROUND UPON WHICH THE
 AUTHORITY WILL GRANT REVIEW OF AN ARBITRATION AWARD UNDER SECTION
 2411.32.  THAT IS, THE EXCEPTION DOES NOT ASSERT A GROUND UPON WHICH
 REVIEW HAS PREVIOUSLY BEEN GRANTED IN THE FEDERAL SECTOR NOR DOES IT
 APPEAR SIMILAR TO THOSE UPON WHICH CHALLENGES TO LABOR ARBITRATION
 AWARDS ARE SUSTAINED BY COURTS IN PRIVATE SECTOR CASES.  THE UNION CITES
 NO PRIVATE SECTOR CASES IN WHICH COURTS HAVE HELD THIS EXCEPTION TO BE A
 GROUND FOR REVIEW OF ARBITRATION AWARDS NOR HAS OUR RESEARCH DISCLOSED
 ANY SUCH CASES.  ACCORDINGLY, THE UNION'S FIRST EXCEPTION PROVIDES NO
 BASIS FOR ACCEPTANCE OF ITS PETITION UNDER SECTION 2411.32 OF THE RULES
 OF PROCEDURE.
 
    IN ITS SECOND EXCEPTION, THE UNION CONTENDS THAT THE AWARD VIOLATES
 FPM SUPPLEMENT 532-1.  IN SUPPORT OF THIS EXCEPTION THE UNION ASSERTS
 THAT THE ARBITRATOR ERRONEOUSLY CONSTRUED THE APPLICABLE LANGUAGE AND
 CRITERIA OF PROVISIONS OF SUBCHAPTER S8 OF FPM SUPPLEMENT 532-1 /2/ AND
 FAILED TO CONSIDER PRIOR RELEVANT DECISIONS OF THE FEDERAL LABOR
 RELATIONS COUNCIL, ALL REGARDING THE DELEGATION TO LOCAL DETERMINATION
 SPECIFIC SITUATIONS FOR WHICH ENVIRONMENTAL DIFFERENTIAL IS PAYABLE.
 (LINE(S) OF SOURCE CUT OFF BY COPY MACHINE)
 
    APPEARS, BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE
 PETITION, THAT AN AWARD VIOLATES AN APPROPRIATE REGULATION.  IN THIS
 CASE, HOWEVER, THE UNION'SPETITION DOES NOT CONTAIN A DESCRIPTION OF
 FACTS AND CIRCUMSTANCES TO SUPPORT THIS EXCEPTION.  THUS, FPM SUPPLEMENT
 532-1, AS NOTED BY THE UNION, PROVIDES FOR THE COLLECTIVE BARGAINING
 PROCESS AS ONE SPECIFIC MEANS OF LOCALLY DETERMINING WHETHER A
 PARTICULAR DISPUTED LOCAL WORK SITUATION WARRANTS PAYMENT OF AN
 ENVIRONMENTAL DIFFERENTIAL.  IN THIS CASE THE ARBITRATOR, IN ANSWER TO
 THE QUESTION OF WHETHER PAINTERS WERE ENTITLED TO RECEIVE ENVIRONMENTAL
 DIFFERENTIAL PAY BECAUSE OF THE CONDITIONS UNDER WHICH THEY WORK-- A
 DISPUTED LOCAL WORK SITUATION-- DETERMINED THAT THERE WAS NO BASIS
 "UNDER THE CLEAR TERMS OF THE AGREEMENT OR THE FPM" FOR THE PAYMENT OF
 THE ENVIRONMENTAL DIFFERENTIAL.  SINCE, AS INDICATED, UNDER THE FPM
 THERE HAS BEEN DELEGATED TO LOCAL DETERMINATION SPECIFIC SITUATIONS FOR
 WHICH AN ENVIRONMENTAL DIFFERENTIAL IS PAYABLE, AND SINCE SUCH A
 DETERMINATION WAS MADE BY THE ARBITRATOR IN THIS CASE IN ANSWER TO THE
 ISSUE BEFORE HIM, THE UNION'S PETITION FAILS TO PRESENT THE NECESSARY
 FACTS AND CIRCUMSTANCES IN SUPPORT OF ITS EXCEPTION THAT THIS AWARD
 VIOLATES THE FPM.  THEREFORE, THIS EXCEPTION PROVIDES NO BASIS FOR
 ACCEPTANCE OF THE UNION'S PETITION UNDER THE RULES OF PROCEDURE.
 
    IN ITS THIRD EXCEPTION, THE UNION ALLEGES THAT THE ARBITRATOR
 EXCEEDED HIS AUTHORITY.  IN THIS REGARD, THE UNION ASSERTS THAT THE
 ARBITRATOR MADE A DETERMINATION AS TO WHICH SITUATIONS WOULD BE PAID
 ENVIRONMENTAL DIFFERENTIAL PAY ALTHOUGH THIS WAS PREVIOUSLY NEGOTIATED
 BY THE PARTIES AND THAT HE "FAILED TO REQUIRE (THE ACTIVITY) TO HONOR
 ITS COLLECTIVE BARGAINING AGREEMENT."
 
    AS IS WELL ESTABLISHED UNDER THE ORDER, A PETITION FOR REVIEW OF AN
 ARBITRATION AWARD WILL BE GRANTED WHERE IT APPEARS, BASED UPON THE FACTS
 AND CIRC